Friday, September 30, 2011

Today the Connecticut Supreme Court upheld the Dennis Canon against a challenge offered by the rector and certain officers and vestry members of Bishop Seabury Church in Groton. The effect of the decision, which affirms a 2010 summary judgment granted by the trial court, is to require the defendants to turn over all of the real and personal property of Bishop Seabury's to the Diocese of Connecticut and the parish under the direction of the Rev. Canon David Cannon (this case is all about canons and cannons), whom the Bishop of Connecticut appointed as priest-in-charge following the departure of the prior rector and congregation to join CANA. (The parish, with its rector and vestry, had been using the Church pending the decision on the appeal, and so now they will have to vacate it.)

The victory by the Diocese may prove to be another Pyrrhic one for the Episcopal Church (USA), which has spent around a million dollars litigating the case. It is unclear whether the remnant and their priest-in-charge will have adequate resources to maintain the buildings and all the related expenses of a full parish. And it is also not clear at this writing whether the case is finally over: the defendants have 90 days within which to ask the United States Supreme Court to review the decision, as I will explain below.

There are actually two opinions today by the Connecticut Supreme Court; I have linked thus far only to the main one. The second decision affirms the trial court's rejection of a motion by the full former congregation of Bishop Seabury's, with some 280 voting members out of a total of about 700, to be allowed to intervene in the case to defend their title to the property. The Supreme Court decided that the interests of the larger group were adequately represented in the principal litigation by the twelve individual defendants.

There is little to say about the main decision, because although it is lengthy (the defendants having raised some fifteen separate defenses), it does not say anything that is new under Connecticut law -- except to establish (paradoxically) that Connecticut courts will be required to decide all future church property cases using "neutral principles of law." Listen to how the Court pats itself on the back for deciding in favor of the latter, before then going on and allowing a national Church to impose a trust on all local property by the enactment of a single canon:

Having considered these differences, we conclude that the neutral principles of law approach is preferable because it provides the parties with a more level playing field, and the outcome in any given case is not preordained in favor of the general church, as happens in practice under the hierarchical approach.

The decision repeats all the usual errors about the "hierarchical" nature of the Church -- while purporting to decide the merits on grounds (neutral principles) which should, as the Court itself acknowledges at one point, render the character or polity of the underlying church itself irrelevant. By reading Justice Blackmun's infamous dictum in Jones v. Wolf as actually binding the civil courts, however, the opinion reaches a new nadir in constitutional interpretation:

Jones thus not only gave general churches explicit permission to create an express trust in favor of the local church but stated that civil courts would be bound by such a provision, as long as the provision was enacted before the dispute occurred. We also reject the view that the Dennis Canon represents a ‘‘self-serving declaration of trust’’ because, as we previously noted, Parish members agreed to be bound by the constitutions and canons of the Episcopal Church and the Diocese in 1956 when they affiliated with the Episcopal Church, and, as a result, their interests are in harmony with those of the Episcopal Church and the Diocese.

What a statement: to find that the interests of the parish "are in harmony with those of the Episcopal Church and the Diocese", just because on joining the Church in 1956, members of the parish agreed to be subject to the national and diocesan constitutions and canons! Courts regularly indulge in what are called for this very reason "legal fictions", but this last one by the Connecticut Supreme Court bids fair to trump any I have seen expressed before. (And that includes the one in Mr. Dickens' Oliver Twist, when Mr. Bumble was informed that the law "assumed" that a husband was in control of his wife. "If the law presumes that," Mr. Bumble famously responded, "then the law is a ass.")

Thus Connecticut now joins California and New York as States of safe haven for ECUSA's ambitions to have all parish property everywhere under its thumb. As readers of this blog will be aware, the highest courts of the latter two States have each professed to follow "neutral principles of law" on the surface, while in reality deferring to the so-called "hierarchy" of the Episcopal Church (USA) underneath. The result is to grant to ECUSA a favored status under State law, because the decisions mean that only nationally structured churches such as ECUSA and PCUSA can qualify for special treatment. Connecticut now joins those two other States in that approach.

While normal people in all three States have to comply with the Statute of Frauds in order to create a trust in real property, these special churches do not. Under the Statute of Frauds as recognized in all fifty States, a trust in real property can be legally created only by a writing signed by the actual owner of the property. But for the special churches mentioned earlier, all they have to do to create trusts in the properties of all their individual parishes is to enact a national rule, or canon -- and for ECUSA, that is its Dennis Canon.

Selecting out some churches for preferential treatment under State law harkens back to the colonial days, when every citizen was taxed to support local parishes of the established Church of England, regardless of whether they happened to belong to those parishes or not. This was one of the reasons for the enactment of the First Amendment as part of the Bill of Rights: it expressly prohibited Congress from "establishing" any religion -- which would include favoring one or more over any others. Later on, in subsequent decisions, the United States Supreme Court extended the reach of the First Amendment to all of the fifty States, as well.

Thus, on the face of things, the interpretation and effect given to the Dennis Canon by today's decision would appear to be one more grant of preference in favor of a "hierarchical" national church, under the guise of applying principles which are scarcely neutral. The Connecticut Supreme Court had no difficulty in binding Bishop Seabury to a little-noticed canon enacted some twenty-three years after it joined the Diocese and acquired its property. Only in such churches, where the national canons are deemed "binding" on all of its lower elements from the moment they take force, can a group be held to have agreed blindly, years in advance, to whatever the national legislative body might see fit to enact many, many years down the road:

When the Dennis Canon [of 1979] is considered together with the application submitted by the members of the local congregation in 1956 for admission to the general church as a parish and with other church documents, it is clear that the disputed property in the present case is held in trust for the Episcopal Church and the Diocese. . . .

Thus, in agreeing in 1956 to abide by the constitution and canons of the Diocese, members of the congregation also agreed to abide by the constitution and canons of the Episcopal Church, including the subsequently enacted Dennis Canon. There is no provision in the constitution and canons of the Episcopal Church or the Diocese expressing an intent to the contrary or excusing a parish, either explicitly or implicitly, from complying with amendments or additions to the constitution and canons that might be enacted after a parish is accepted by the Diocese.

Of course, there is no provision in the constitutions and the canons of the national Church or the Diocese that all future enactments by them will become automatically binding on the parishes in perpetuity, either. (I will have more to say about this in a future post.)

And it is this discrepancy in treatment which may give Bishop Seabury's a federal ground on which to ask the United States Supreme Court to review today's decision. This is especially true in light of the earlier decision by South Carolina's Supreme Court, which also under "neutral principles of law" refused to give any legal effect to the self-declaratory Dennis Canon. It is difficult to see how "neutral principles of law" can be used to arrive at exactly opposite results, unless the result in favor of the national church is due to the granting to it, under State law as interpreted by that State's highest court, a special preference which would be unconstitutional under the First Amendment.

Cut it any way you like, but today's decision contributes further to the patchwork quilt of church property jurisprudence, in which all courts applying the same "neutral principles" still reach different results: the Dennis Canon ostensibly binds parishes in New York, Connecticut and California, but not in South Carolina, Kentucky, New Hampshire or Arkansas -- with Virginia still to be determined. And for that crazy result, we have ECUSA and its hired attorneys to thank.

So -- hang on to your hats. This case is not over until it is over, which is to say, until we see whether a petition will be filed in the next ninety days.

[UPDATE 09/30/2011: One has to marvel at the innocence of some good Episcopalians, such as the Very Rev. Nick Knisely, Dean of the Cathedral at Phoenix, in the Diocese of Arizona. I love his blog "Entangled States", which frequently informs me about the latest discoveries in the world of physics and cosmology, and so I link to it at the right. But look how, posting at The Lead, he has distorted the Associated Press account wholly to favor just ECUSA (emphasis added):

The Supreme Court of Connecticut today decided in favor of the Episcopal Church and the Episcopal Diocese of Connecticut in a dispute arising when a number of former Episcopalians claimed ownership of the building and property of the parish they had attended. . . .

"We now conclude under neutral principles of law that the Dennis Canon applies and that it clearly establishes an express trust interest in the property in favor of the Episcopal Church and the Diocese," [Connecticut Supreme Court Justice] Zarella wrote."

The article goes on to list all the instances where State supreme courts and other courts have ruled in favor of the Episcopal Church and the argument that the Dennis Canon means that all property in the Episcopal Church is held in trust for the Episcopal Church as a whole.

For your information, Dean Knisely, the article does not provide anything even approaching such a "list." In the first place, it confines itself just to a listing of cases in 2011, so it does not claim to survey the entire field.Next, it mentions the California litigation involving St. James, in Newport Beach, California -- in which St. James won its right to go back to the trial court for further proceedings: that is hardly an instance where the State court ruled in ECUSA's favor. Then the article mentions Pittsburgh, but that litigation is waiting to hear whether the Pennsylvania Supreme Court will review the appellate court's decision. And look at the other cases it mentions: Virginia and Texas, where there are no final rulings of any kind, and --- wait for drum roll, please -- Canada!

Pray tell us: how does the decision of a court in Canada, which operates under completely different laws and precedents, and which involves the Anglican Church of Canada, count as a "rul[ing] in favor of the Episcopal Church"? (Just because the Canadian court decided in favor of the Diocese of Westminster does not make it a Dennis Canon precedent -- the decision went entirely on the Canadian law of implied trusts, and not on express ones.) I am afraid, Dean Knisely, that your wishes that something were indeed true about our Church have led you, in this one instance, at least, to engage in some ultracrepidarian misinformation.]

Tuesday, September 27, 2011

[Nota Bene: Readers are warned in advance that this will be the first in another of those desultory series on this blog about the continuing decline and fall of ECUSA. It is an elaboration of my far briefer remarks for this week's Anglican Unscripted, which the less interested reader could simply watch instead. More parts will shortly follow.

(I apologize for not being able to make this sorry chronicle even half as memorable as the related account by Mr. Edward Gibbon, but the difference is that he was able to describe a truly grand empire that had gone defunct, and the whole colorful picture was complete before he started. Your Curmudgeon, on the other hand, has the unenviable task of portraying the decline of a not-so-big and not-so-grand Church as it is not-so-dramatically happening in real time, and from within its own ranks.)]

In 2008, the political mood of the country was significantly behind the "Hope and Change" platform of the first black President of the United States. Nearly three years later, however, there are serious recriminations being voiced about whether the structure the President has built around that platform is in the country's best interest, and whether the Obama administration deserves another four-year term to keep enlarging it.

The problem is that Obama has been trying to fit a statist structure, or polity -- one where decisions at all levels are made by the government, and specifically, by the executive branch -- onto foundations that were designed from the outset to support divided government, with its various checks and balances. The result has been a budgetary and political catastrophe.

Billions and billions of dollars have been allocated to bailing out companies which deserved the failure their own shortsighted policies had brought upon them, but who survived instead to fail another day, thanks to their cronies in the government being generous with the taxpayers' money and with the credit of future generations.

Czars by the dozen have interfered in every aspect of citizens' lives, without any authority conferred upon them by Congress (even assuming arguendo that the Tenth Amendment did not reserve all such authority to the people themselves).

In 1810, it would have been impossible for Congress to conceive of telling Americans that they had to switch from burning tallow candles in their homes to ones made only of beeswax, in order to reduce smoke and cut the waste of wax drippings. But just 200 years later, Congress felt free to dictate to all Americans what kind of lightbulbs they could use, in order to conserve electricity. How is this possible?

Answer: it isn't -- at least, not for very long. Have you noticed how many people are fighting back against any more statist decrees and laws, and crony bailouts? (Only some of those people are the "Tea Partiers" -- whom Obama's statist supporters, nevertheless, single out for slander and opprobrium.) Have you noticed, also, that even Nature fights back when "environmentalists" push policies whose consequences their own short-sightedness keeps them from seeing? And that every now and then, even the courts manage to wake up to see the wool being pulled over everyone's eyes with regard to the environment? (And to the detriment, again, of local economies?)

What the statists will try with the United States Government, so, too, the statists in the Episcopal Church (USA) will attempt with their own progressive platform. The process began with a change in their public image -- when they first dropped the word "Protestant" in front of their name in order to become known as "The Episcopal Church". (Everyone knows that there is only one Episcopal Church, right? Of course they do. But notice that, change or not, they have lost nearly fifty percent of their members in the years since the referenced news story appeared in 1964.)

Then it continued with expansion of the national Church's budget, almost 40% of which is now fed by monies from the federal government (for Episcopal Migration Ministries), in order to accommodate the multiplication of Committees, Commissions, Agencies and Boards (over 75 now discernible), and the huge growth in the House of Bishops, with now over three hundred members (that's more than three for every diocese!) -- two-thirds of them, of course, having resigned (retired from) their jurisdictions.

We are now at a point where the Episcopal Church (USA) finds itself in significant structural trouble, which is having equally significant ramifications for its budget. As we have just seen, all during the period that it was steadily dropping in membership, the Church was expanding its national superstructure and its budget. This made no sense, but apparently no one in charge cared, until the steady decline in voluntary contributions, from an ever-shrinking base of parishioners, literally forced the leadership to make painful cuts. And still, the Church continues to lose members -- on average, about forty parishes a year (the equivalent, one of its officers says, of a "very small, admittedly, diocese"). Even such a small number, however, adds up significantly over time, and the cumulative effects are extremely unhealthy for future prospects.

ECUSA is like a huge mansion constructed some time ago, whose foundations are slowly eroding while its superstructure remains just as huge and heavy as ever. It makes no sense for the House of Bishops to keep growing while the number of parishes steadily diminishes. Likewise, it makes no sense for ECUSA to be downsizing its budget, to match the fall in voluntary contributions, while sending its bishops to meet in Quito so that the Church can demonstrate its claim to an "international" polity. These two observations, however, furnish a basis for drawing further conclusions about what is now happening.

A third observation coincides with the second one: one wholly unstated purpose of the bishops' traveling to Ecuador for their meeting was so that the Bandit Bishop could raid another diocese, and force out those she now found unsatisfactory in order to put in administrators of her choosing (and start a new round of the debacle that began with the arrogance of General Convention in 2009). One would like to have been a fly on the wall when Bishop Jefferts Schori informed Bishop Luis Fernando Ruiz that she expected him to resign by the end of the month, "for the good of the diocese." Did she have her Chancellor present, and did he suggest that a refusal might offer the inaugural occasion for her to exercise the new metropolitical powers which she was given [albeit illegally] under the revised disciplinary canons?

ECUSA from its beginnings was never designed with the foundations to accommodate a huge mansion. Its base was more akin to a small but sturdy platform designed to hold a collapsible tent, which it erected once every three years for a brief period. Select numbers of the Church's clergy and laity would come and meet in the tent, and then fold it up and put it away for another three years. Its presiding bishop was just another diocesan, like everyone else, who had his own diocese to run in the interim. Chairing a tent meeting every three years was not a significant additional burden for one bishop to assume, and that was how the Church functioned at the national level for 160 years.

ECUSA's General Convention in those days had as its primary function the hearing of reports on the status of the Church in each Diocese. Occasionally it was called on to admit another new diocese into union with the Church, or appoint a bishop to supervise a missionary diocese, and now and then it adopted amendments to the Canons. But its role on the national scene was largely ephemeral, and entirely forgettable.

What changed ECUSA structurally from its original model was the slow but steady growth in the size of its House of Bishops, as more and more territory came under ECUSA's jurisdiction, and also the advent of powerful new social forces. The first factor forced a change in the office and functions of the Presiding Bishop; following that change, the second factor transformed the character of the Church itself, under the active leadership of the new breed of Presiding Bishops.

In the fifties and sixties of the twentieth century, the Church's identification with the "peace and justice" movement began to add to its superstructure. At first, the Church became fired up with zeal for the civil rights movement in the South. To demonstrate its solidarity with the cause, its Presiding Bishop, the Rt. Rev. Henry Knox Sherrill (founder of the World Council of Churches), even canceled a General Convention which had been planned for still-segregated Houston, in 1955, rather than be embarrassed in front of his colleagues on the Council. Under his successor's initiative, the Church embarked on the "General Convention Special Program", by which money raised in dioceses, largely by Episcopal Church women through their United Thank Offering, was given to Presiding Bishop John Hines to use for his own social and civil rights agenda in the South and elsewhere. It was an ambitious program which soon began to undercut those of the several dioceses, and which, of course required an ever-larger bureaucracy -- and eventually, in 1963, a brand-new skyscraper for their headquarters.

But notice, if you will, the opposing direction of these two trends. The steady enlargement of the House of Bishops meant that they became a force of their own -- to be reckoned with, but primarily concerned with their own unique powers and theological innovations. Heresy entered the House of Bishops, first with Bishop Pike, and then with Bishops Spong, Righter and others quickly following through the breach which Bishop Pike had made. At first, the assembled bishops managed to censure Bishop Pike, but after that their courage became too diluted, and they failed to discipline the new generation of heretics. Eventually, as we all know, heresy swallowed up orthodoxy, and became itself the new orthodoxy under the new breed of bishops.

While the Bishops were distancing themselves from the traditional positions of those in the pews, at the same time the second trend, the new activism in the name of "peace and justice", was slowly transforming General Convention itself, and its House of Deputies.

Civil rights in the political sphere led to "civil rights" for women in Episcopal ordination, and the success of that blatantly political ploy was then imitated by the "gay rights" movement. By the late 1990s, ECUSA's General Convention was dominated by a new breed of deputy, described by one knowledgeable observer as "people with an excess of leisure time, or people with a cause." Because it was a mecca for activists, it became likewise a mecca for the causes and movements which the activists supported:

Convention is more than legislation. One of the most interesting parts of convention is the Exhibit Hall. The Exhibit Hall reminds me of an oriental souk: it is a marketplace of goods and ideas in which the organizations and interest groups within the church present their wares, recruit members and do their best to influence legislation. It is a colorful part of convention, and it would not be General Convention without it.

Many church-related organizations hold meetings in conjunction with convention, and there are lunches and dinners hosted by seminaries, provinces, societies, boards and staff offices of the church. . . .

General Convention is a combination of legislative assembly, bazaar of goods and services and family reunion. It is one of the most exciting and, truth be told, one of the most awe-inspiring gatherings in the world.

(And that is General Convention's Executive Officer speaking!) Moreover, this new breed of deputies felt no allegiance whatsoever to the diocese that elected them, because they viewed their mission as being guided by no less than the Holy Spirit (here is the Executive Officer again, with my emphasis added):

Deputies are not delegates; that is, they are not elected to represent the electing dioceses.

Deputies vote their conscience for the good of the church. They cannot be instructed to vote one way or another, for to do so would preclude godly debate and preempt the work of the Holy Spirit. . . .

Is it any wonder, then, that there is an ever-widening disconnect between what goes on at General Convention and what goes on in the daily life of the Church? The former has become nothing more than a spectacle, a useless extravaganza costing the Church millions, which enables its select participants to feel good about themselves. Once General Convention adjourns after coming together for ten days, its same members never get together again, so there is little follow-up on the myriad resolutions which it enacted, and zero accountability for what was done in the Church's name (such as amending the disciplinary canons to give the Presiding Bishop metropolitical powers).

Thus the Episcopal Church still has its collapsible tent which it puts up every three years, only now it is more like a Big Top Circus enclosure. Unlike the Church founded in 1789, it now has a permanent superstructure housing a national bureaucracy (think of those 75 Committees, Commissions, Agencies and Boards), which meets continually, and fills in the gap between General Conventions. And as it always tends to do, the bureaucracy has taken on a life of its own, despite its duplication of much diocesan effort, and despite the lack of any underlying structural support for its existence at the national level. (Recent budget shortfalls have finally forced a reduction in the size of the bureaucracy.)

As I hope you now can see, this mismatch between structure and design is the same problem which President Obama ran into when he tried out his statist platform on our traditional government base: it didn't fit, because the foundations were not designed to support such a structure above. Likewise, the model for the national Church, with its simple platform for a collapsible tent brought out only once every three years, cannot support an ongoing national bureaucracy, whose agenda is frequently at odds with the agendas of the member dioceses. The disintermediation is undermining the Church's structure, as well as its budget, and cannot long continue without further and far more radical changes than those which have occurred up until now.

In the next post in this series, I will take up the recent proposal from Bishop Stacy Sauls, the Church's new Chief Operating Officer, for just such a "restructuring."

Monday, September 26, 2011

Two years ago, the parishioners of St. Mark's-on-the-Mesa in Albuquerque left the Diocese of Rio Grande to found the Anglican Church of Christ the King. In doing so, they left everything behind them, including real property, furnishings and endowments worth over $ 2 million.

For the Diocesan Council of Rio Grande, however, that was not enough. It seems that St. Mark's had pledged a diocesan contribution for 2009 of $100,000 in quarterly installments, and that only half had been paid by the time of the congregation's departure. So they met and passed a resolution, which resulted in Bishop Michael Vono's writing the following letter (yes, this is real, and not a spoof -- Johnson's First Law of Episcopal Thermodynamics strikes again):

August 31, 2011Dear Father Weber,

RE: St. Mark's on the Mesa, AlbuquerqueFair Share Obligation, Third Quarter 2009

I pray that this finds you well in the Lord! Summer is always such a gift in the ministry, a time for reflection, refreshment and anticipation for the end of the liturgical year.

On July 12 of this year, the Diocesan Council had a meeting here a [sic] Diocesan House. At that time, a group from St. Mark's-on-the-Mesa, Albuquerque came before the Council to request forgiveness for their Fair Share obligation from the third quarter of 2009. As I am sure you are well aware, it was during this time that a good number of the clergy and congregation at St. Mark's-on-the-Mesa left to form a new congregation, leaving the remaining members with quite a financial and emotional burden to carry. What follows is the motion as it was amended and passed that afternoon.

Motion, that the -$25,000 Fair Share obligation for St. Mark's on-the-Mesa, Albuquerque for the third quarter of 2009 be forgiven. Moved and seconded to amend the motion by replacing it with the following: that the -$25,000 Fair Share obligation for St. Mark's-on-the-Mesa, Albuquerque for the third quarter of 2009 be adjusted to $5,000 and that the Diocesan Council write a pastoral letter to the leadership of Christ the King Anglican Church appealing to them to cover $20,000 of the original Fair Share obligation for St. Mark's on-the-Mesa, Albuquerque for the third quarter of 2009.

The amendment passed. The amended motion passed.

As you can see, it was the decision of Council to hold St. Mark's-on-the-Mesa responsible for the entire Fair Share payment for the third quarter in 2009, requesting that the burden be split between the members that left and the members that stayed, dividing the responsibility roughly along the lines of how the congregation self-selected.

I would ask that you would prayerfully consider accepting the responsibility of paying the portion of the Fair Share that was required by the Episcopal Diocese of the Rio Grande.If you have any questions regarding this matter, please contact me here at Diocesan House, or in my absence, Mr. Fred Winter or Ms. Lisa Katz-Ricker, 505-881-0636.

There is no record yet of any official response by the congregation. Permit me, therefore, to make a modest suggestion that Father Weber and his vestry respond as follows:

Dear Bishop Vono:

How nice it was to hear from you after such a long time! With you, my congregation and I are enjoying the waning days of summer -- "a time for reflection, refreshment and anticipation for the end of the liturgical year", as you say.

And I have to confess, your letter of August 31 does find us "well in the Lord." Now that we no longer have to tolerate Biblical revisionism and heresy at the highest levels of our church, we are experiencing Christ's blessings upon us more richly than ever before.

I was so glad to hear that your Diocesan Council still meets regularly, and that they still address weighty matters of concern to the whole Diocese, such as everyone's Fair Share obligation. In response to their request, which you so forthrightly conveyed to us, our vestry met, and after giving it the prayerful consideration which you asked of them, they passed unanimously the following Resolution:

Whereas, from January 2008, following the departure of Bishop Steenson to join the Roman Catholic Church, to September 2009, when the overwhelming majority of the parishioners of St. Mark's-in-the-Mesa decided that they, too, had to leave the Episcopal Church, our parish gave the total sum of $150,000 to the Diocese of the Rio Grande; and

Whereas, during that same time period, the congregation spent a further total of $100,000 on maintaining and repairing its building before turning it over to the Diocese of Rio Grande; and

Whereas, the estimated value of the real and personal property (including endowments) which this congregation left to the Diocese of Rio Grande as a result of its departure was in excess of $2,000,000; now, therefore,

Be it resolved that since this congregation has given far more to the Diocese than it has received, it is more than abundantly blessed, and does not consider that it needs still more blessings through additional works of charity for the Diocese.

The vestry has asked me to convey to you and your Diocesan Council its sincere thanks for the opportunity for additional blessings which it so thoughtfully bestowed upon us, and its deep regret that, as our cup now overfloweth, we could not avail ourselves of your generous offer.

[UPDATE 09/26/2011: Martial Artist's comment (see below) reminded me of one of the sharpest of responses ever made by a composer to one of his critics, which I had occasion to link to in my post "On the Proper Treatment of Arrogance." Here is the basic story:

One of the most magnificent witticisms from the arts was by German composer Max Reger (1873-1916). Responding to a negative review by Rudolf Louis of his Sinfonietta (1906), Reger is said to have shot back: "Ich sitze in dem kleinsten Zimmer in meinem Hause. Ich habe Ihre Kritik vor mir. Im nächsten Augenblick wird sie hinter mir sein." (I am sitting in the smallest room of my house. I have your review before me. In a moment it will be behind me.)

I do not want to undermine the Christian charity of my earlier suggestion to the Anglican Church of Christ the King, but, still -- one has to say, Reger's response was brilliant, and deserves its place in the quotation books!]

This is such a crucial preface to what follows that I shall restate it: only dioceses, in their given territories, are legal members of the association which is the Episcopal Church (USA). As such, they are free, under the First Amendment, to join it or to leave it at their pleasure, through duly enacted amendments to their governing documents -- which ECUSA is, again under the Constitution's First Amendment, powerless to annul or forbid.

Oh, really? And just who, pray tell, is this supra-diocesan "Executive Council", or its "Joint Standing Committee on Governance and Administration"?

Answer: the Executive Council is not an official body of the Episcopal Church (USA), because it is neither a constituent member of that association (only dioceses are members), nor is it a creature of ECUSA's Constitution, which does not mention it in any of its Articles. And by definition, a committee created by the Executive Council to operate under its auspices, whether sanctioned by canon or not, can attain no supra-diocesan status, either.

Instead, the Executive Council is nothing more than a glorified Board of Directors, to whom additional express duties have been delegated (and those duties emphatically do not include ruling on the constitutionality vel non of amendments by dioceses to their governing documents). The entity of which it is the Board of Directors is not the unincorporated association which is the Episcopal Church (which has no Board), but instead is the New York charitable corporation which calls itself "the Domestic and Foreign Missionary Society." That Corporation's articles were established by Canon, and the role of the Executive Council as its Board was likewise established by Canon. But I repeat: no mere canon of the Church can elevate the Board of Directors of a separate religious corporation, let alone one of its joint committees, into a supra-diocesan authority within the association of dioceses that form the Episcopal Church (USA).

Let me give you an ordinary-day analogy: the claim by the Executive Council to be able, by one of its resolutions, to "nullify" a duly adopted amendment by a diocese to its own Constitution and Canons is akin to the Board of the Book-of-the-Month Club claiming the power to nullify your neighborhood book club's bylaws, just because all of your book club's members were also subscribers to the Book-of-the-Month Club. They would never claim any such legal authority, and it is just as preposterous for the Executive Council of the DFMS to claim such authority with regard to members of ECUSA.

There is a reason, after all, why an unincorporated association like ECUSA has a Constitution. It embodies the terms of the contract between and among its several member dioceses. All of those members are signatories to the contract, and no non-member has any ability to sign or otherwise modify the terms of that contract.

The Executive Council, I repeat, is neither a member of ECUSA, nor a body created by the contract among its members, which is the Constitution. Another body created by that contract, which we call General Convention, chose to form a non-profit religious corporation under the laws of the State of New York, so as to be able to receive and hold gifts of property and money from Church donors. (Under New York and common law then in effect, an unincorporated association like the Protestant Episcopal Church (USA) was legally incapable of receiving gifts, or of holding title to property.)

That corporation so formed by canon of General Convention needed a board of directors under New York State law. Initially, the Canon authorizing the Corporation provided that the Board consisted of 24 members elected at each meeting of the DFMS, while all of the Church's bishops were deemed "Vice Presidents" of the Corporation. Those provisions, however, became unwieldy with the passage of time, and various intermediate solutions were adopted, only to be abandoned at subsequent Conventions and replaced by still other substitutes.

Finally, in 1919, General Convention proposed the creation of a body which it called the "National Council", which would function as the Board of the DFMS. The enactment of what became Canon 60 in that year described the powers and duties of the Council, in these words:

Sec. 2. The Presiding Bishop and Council shall exercise all the powers of The Domestic and Foreign Missionary Society . . . and have charge of the unification, development, and prosecution of the work of Missions, Church Extension, Religious Education, and Christian Social Service; of the performance of such work as may be committed to them by the General Convention, and of the initiation and development of such new work between the sessions of General Convention as they may deem necessary, subject, however, to the provisions of the Constitution and Canons . . . .

These duties and powers of the now-yclept "Executive Council" have essentially remained the same ever since. Current Canon I.4.1 provides in part:

Sec. 1 (a) There shall be an Executive Council of the General Convention (which Council shall generally be called simply the Executive Council) whose duty it shall be to carry out the program and policies adopted by the General Convention. The Executive Council shall have charge of the coordination, development, and implementation of the ministry and mission of the Church.

(b) The Executive Council shall be accountable to the General Convention and shall render a full published report concerning the work with which it is charged to each meeting of the said Convention. The report shall also include information on the implementation of all concurred resolutions of the previous General Convention calling for action by the Executive Council, by its officers and staff, and by the jurisdictions of the Church.

. . .

(e) The Council shall exercise the powers conferred upon it by Canon, and such further powers as may be designated by the General Convention, and between sessions of the General Convention may initiate and develop such new work as it may deem necessary. It may, subject to the provision of this Canon, enact By-laws for its own government and the government of its several departments.

(f) In its capacity as the Board of Directors of The Domestic and Foreign Missionary Society, the Council shall have the power to direct the disposition of the moneys and other property of said Society in accordance with the provisions of this Canon and the orders and budgets adopted or approved by the General Convention.

Liberals like to argue, for example, that to "accede unconditionally" to the Constitution and Canons of ECUSA, as a Diocese sometimes (but by no means always) does on coming into union with ECUSA, binds the Diocese perpetually to be a member of the association which is the Church. Such an argument reads far too much into that language, however, because such a reading would assert that the Episcopal Church is above (or somehow exempt from) the restrictions of the First Amendment. Under the language of that Amendment, as construed by the Supreme Court, the Constitutional guarantee of "freedom of association" includes both the right freely to join (religious and other) organizations and associations, as well as the right to leave them. In short, even were there a written clause in ECUSA's Constitution forbidding members from withdrawing once they have joined -- and I emphasize that there is no such clause -- it would be unconstitutional, and unenforceable in any court of the United States.

The recent actions of the Executive Council are thus delusional, and on a grand scale. They arrogate to the Council a power which it never has had, and never could have. The fact that the Council believes it could exercise such legal power shows what terrible legal advice it is currently receiving -- legal advice which must be wholly colored by the plain need of the Presiding Bishop's Chancellor and his law firm to maintain the fiction that all member dioceses are subordinate to some ethereal, non-existent entity which is "the Episcopal Church." The obvious appeal is to the analogy of the United States -- which, unlike ECUSA, has an executive branch and a judicial branch which are co-equal with its legislative branch, and the three branches thus form a single, unitary political entity in the eyes of the law.

But at the head of ECUSA, there is no such unitary entity. There is only an occasional legislature, which meets once for ten days every three years and then dissolves, never to assemble in the same form, and with the same legislators, ever again. There is no supreme ECUSA judiciary, empowered authoritatively to construe and interpret the Constitution and Canons -- witness this very current dispute: there is no "court" within ECUSA that can authoritatively pronounce just what are the delegated powers of the Executive Council, and have that pronouncement deemed "binding" on the whole Church.

Likewise, there is no (at least not yet) President of the Episcopal Church, with the power to sue and be sued on behalf of the Church, to sign binding contracts on its behalf, and otherwise to enforce its laws (canons) in every Diocese.

(Side note: when was the last time the Episcopal Church [or its Presiding Bishop. acting on its behalf] ever prosecuted anyone, anywhere, for violating Canon II.1, which provides in full -- and I quote:

All persons within this Church shall celebrate and keep the Lord's Day, commonly called Sunday, by regular participation in the public worship of the Church, by hearing the Word of God read and taught, and by other acts of devotion and works of charity, using all godly and sober conversation.

I rest my case.)

In short: this latest action by the Executive Council is itself a nullity, because it is not authorized by any provision in ECUSA's Constitution. Those who make their rules must live by their rules, but ECUSA's Presiding Bishop, her Chancellor, and its Executive Council are deluded otherwise, because the House of Bishops and the House of Deputies have let them get away with it -- for too long!

If, therefore, this is ECUSA's equivalent of the opening salvo on Fort Sumter, then prepare for civil war.

Sunday, September 18, 2011

As readers of this blog are aware, your Curmudgeon is no fan of the Dennis Canon, which I like to call the Episcopal Church (USA)'s Trojan Horse. It has spawned a disproportionate amount of Church property litigation, because it operates by stealth, and springs onto the back of a parish just at the time when it is most vulnerable, having decided to take the final step to disaffiliate from ECUSA. All of a sudden, the Bishop of the Diocese swoops down with his attorneys, and orders the congregation to vacate its building, and leave everything behind, from the altar candlesticks to the bank accounts and pew cushions. "Because you no longer are operating within the Episcopal Church," he says, "Canon I.7.4 [the Dennis Canon] declares that all of your property is now forfeit to the Diocese, since it was always held in trust for this Diocese and the Church."

Such a claimed operation for the Canon comes as a surprise to many congregations who thought that their years of paying for the acquisition, construction and maintenance of their building, plus a deed in their name, meant that they owned it. Furthermore, every State in the United States has a law which says that trusts in real property can be created only by a writing signed by the owner of the property. The Dennis Canon operates in reverse: it purports to create a trust in church property without the owner's signature, and just on the authority of ECUSA's General Convention. As I noted elsewhere, it purports to operate as though, upon you and your spouse's joining the Democratic Party, your house and all your worldly goods become forfeit to the Party should you ever decide to become a Republican.

States such as California and New York are lost causes, however. Although they have the same statute regarding how trusts are created as does every other State, they also have statutes which create special exceptions to that rule for national churches like ECUSA. The exception allows such national churches to create trusts in parish properties unilaterally, without the individual parishes' consent, by providing for such trusts in their governing documents. The highest courts in California and New York have accordingly upheld the validity of Dennis Canon trusts against individual parishes who decided to leave the Episcopal Church (USA).

To date, the only State to rebuff clearly and unequivocally the idea of a Dennis Canon "trust" in church property has been South Carolina. In cases decided by their Supreme Courts, the States of Kentucky and New Hampshire have also indicated that they might not ratify the creation of a trust by a trust beneficiary, as opposed to by the property's actual owner, since they have declared that they would apply a strict "neutral principles" approach. For example, in Berthiaume v. McCormack, 153 N.H. 239, 891 A.2d 539 (2006), the New Hampshire Supreme Court wrote that a court must “consider only secular documents such as trusts, deeds, and statutes. Only if these documents leave it unclear which party should prevail will we consider religious documents, such as church constitutions and by-laws, even when such documents contain provisions governing the use or disposal of church property.” (Id. at 248.) It justified this ranking by holding that such an approach “is consistent with [the] rules governing the resolution of property disputes generally. In resolving such disputes, [courts] consider extrinsic evidence and the circumstances surrounding a conveyance to determine the parties’ intent only if the language of the relevant documents contains either patent or latent ambiguity.” (Ibid. [citations omitted].) The Court went on to decide that as title to the property in question was held solely by the Roman Catholic Bishop of Manchester, he could sell it to another denomination without having to keep it in trust for Catholic parishioners.

The Presbyterian Church (USA) has also been taking a number of property disputes to court, with mixed results. It has a provision in its governing Book of Order which tries to accomplish the same goal as the Dennis Canon -- to ensure that all congregational property is held in trust for the larger presbytery of which the congregation is a part.

Now comes word that an appellate court in Louisiana has rejected that Church's argument that its Book of Order, in and of itself, was adequate to establish a trust, in the Presbytery's favor, in the property of a local congregation. In its opinion, which upheld title in favor of the parish of Carrollton against the claims of the Presbytery of Southern Louisiana, the First Circuit Court of Appeals wrote (beginning on p. 9):

Moreover we agree with both Carrollton and the district court that, even if we were not persuaded that Carrollton is exempt from the Book of Order's express trust provision, Louisiana trust law would apply to this dispute over Louisiana property. ￼In Jones v. Wolf, 443 U.S. at 602, the United States Supreme Court recognized a state's "obvious and legitimate interest in the peaceful resolution of property disputes and in providing a civil forum where the ownership of church can be determined conclusively." The Court went on to note that application of the neutral-principles approach relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges." Jones, 443 U.S. at 603. Although the Court opined that a trust in favor of a general church could be created by the constitution of the general church being made to recite an express trust provision in favor of the denominational church, the Court noted "the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form." Jones, 443 U.S. at 606 (emphasis added). We are not persuaded by the Presbytery's contention that the requirement of a "legally cognizable form" was met simply by the PCUSA's amending its constitution.

The subject property is situated in Louisiana and applying neutral principles of law we find that any purported trust would be subject to the form requirements set forth in Louisiana's Trust Code. It is undisputed that those form requirements have not been met. The public records relating to the subject property reflect that the property is owned by Carrollton. There is no mention of the property being held in trust in the deeds themselves and it is not disputed that no trust instrument relating to the property has been filed of record in Orleans Parish. See La. Rev. Stat. Ann § 9:2092.

This is a straightforward application on the Statute of Frauds to church property disputes, exactly as was done by the Supreme Court of South Carolina. Last week also brought us news of the oral arguments in a church property case which reached the Supreme Court of Indiana. I had already written here about the trial court's decision in the case of Olivet Evangelical Presbyterian Church of Evansville v. Presbytery of Ohio Valley. That decision had been reversed by the Indiana Court of Appeals in 2010, and the congregation's request for review was granted by the Indiana Supreme Court. In its newsletter, the Presbyterian Lay Committee gave the following account of the arguments in the case two weeks ago, before Indiana's highest court:

Representing the Presbytery of Ohio Valley, attorney Judy L. Woods attempted to defend the appellate court’s decision to grant the presbytery’s trust claim on the property.

“The law regarding religious freedom, the law regarding the means and basis for deciding a church property dispute, is well settled,” she said. “Churches in all their forms of polity and government -- they form their own rules … for deciding disputes,” she added. “Courts may not interpret these or interfere with their administration if it involves delving into ecclesiastical or doctrinal matters.”

“That is not so,” Justice Brent E. Dickson pointed out, citing a 1979 U.S. Supreme Court decision in Jones v. Wolf in which the court stated that “courts may use neutral principles of law to adjudicate these property rights and they don’t have to look at the hierarchical documents.”

Woods admitted the court does not have to use the hierarchical deference standard under which courts defer to the decisions or precedents of a denomination’s highest governing body. However, Woods said that states may use it and that Indiana has in the past.

Indiana courts have also applied, however, the neutral principles standard under which courts evaluate property disputes using secular legal documents such as deeds and trust documents that have been executed according to state law without regard for denominational policies.

“States may use a number of approaches to decide church property disputes,” Woods said, admitting that neutral principles had become a preferred method.

Ms. Woods did not fare any better with another of the justices, either:

Justice Robert R. Rucker told [Woods]: “The problem I’m having with this is that, in our property law arena, there are ways you establish who owns what property and there are ways in which you establish [a] trust – that’s a matter of state trust law.”

“It doesn’t appear to me that the court of appeals applied those rules in this case and that’s bothersome,” he added, asking Woods if principles of trust law had been abandoned.

Woods countered that the court appeals looked at the “bylaws and other documents under neutral principles applicable to standard corporate documents.”

Woods claimed that the documents and bylaws established under PCUSA polity should be reviewed in the sense of a state-sanctioned legal document.

“[The appellate decision] did not get into whether these particular documents formed a trust,” she said.

“That’s my problem right there,” Dickson said. “Jones instructs us that the neutral principles approach relies exclusively on objective, well-established concepts of trust and property law familiar to lawyers and judges,” he said, adding, “You’re saying the court of appeals didn’t look to those familiar principles of trust and property law.”

Woods disagreed and said the court looked at trust law as it applied to Olivet’s bylaws.

“Where did Olivet ever expressly create a trust on its own property?” Dickson said.

The attorneys for Olivet and for the Presbyterian Lay Committee (as a friend of the court, or amicus curiae) were not questioned as severely as Ms. Woods, as you can read in the link referenced. In her rebuttal, Ms. Woods once again ran into hostile questioning about how a church's governance rules can override state statutes:

During rebuttal, Woods reiterated her earlier argument that trusts can be created under Indiana law without specific documents expressly stating such, claiming that Olivet created a trust simply by belonging to the PCUSA from 1983 to 2006.

“In 1983, it said it wanted to adopt the new Book of Order, including the property trust clause. In 1994, it incorporated … and said it was subject to the entire [PCUSA] constitution,” Woods said.

“If the [PCUSA] General Assembly were to amend the Book of Order and say ‘Divorces in this congregation will be governed by sharia law,’ would the members of all the member churches getting divorced have to follow those property divisions and divide their property according to that or not?” Dickson asked.

Sharia is a form of religious law in Islam that can be binding as authoritative civil law in some countries. Under some forms of sharia, men may unilaterally divorce their wives simply by telling them, without regards to her wishes.

Woods admitted that such a law could only be governed by ecclesiastical rules and would have no standing under secular authority.

“Churches do have to adhere to civil law,” she said.

“You just don’t have to abide by property law, huh?” Dickson asked.

Those who have the interest in these issues, and who have an appropriate media player, will enjoy being able to view and listen to the full oral arguments by going to this link. It is always tricky to guess the outcome of a case from how the questions at argument go, but in this particular case, I will hazard a prediction that PCUSA's Book of Order will not be regarded as establishing a self-actuating trust in Indiana. And if that is the result, then the Dennis Canon will be dead in that State, as well.

By way of a related resolution proposed by [the Finances for Mission Committee], the council approved borrowing of up to $60 million to refinance $46.1 million in debt that comes due at the end of this year. The $37 million renovation loan [to upgrade the headquarters at 815 Second Avenue] makes up the bulk of that amount. In addition, close to $10 million was spent on property in Austin, Texas, as a potential site for relocating the Archives of the Episcopal Church. The resolution said that the borrowing authority is also meant "to provide continuing working capital and liquidity."

The resolution requires that any refinancing agreements include a mandatory repayment schedule for the $37 million at a fixed interest rate. FFM chair Del Glover told his committee earlier in the meeting that because of past budget decisions, only about $500,000 of the principal has been paid off.

"To the extent that we are not paying debt, we are borrowing money to do the ministry of the church," he said.

The resolution calls for mortgaging the Episcopal Church Center in Manhattan and securing the rest of the borrowing with unrestricted endowment assets. The current debt is in the form of a line of credit.

(Emphasis added.)

Thus Executive Council gave the Treasurer of the Church the authority to borrow up to $60 million to pay off the $47 million already spent on renovations and acquiring land for the Archives, and to secure that debt with a first mortgage on the property at 815. And my post covering the meeting assumed that is just what the Treasurer would do.

It turns out I was wrong. The only way this fact could be discovered, however, was to wait for the publication of the official minutes of the October 2010 meeting, which appeared only recently, and also for the posting of the annual audited financial statements of the Domestic and Foreign Missionary Society (the actual financial arm of ECUSA -- the New York corporation which holds and spends all the money). To understand what eventually happened, and why, requires a bit of background.

First, please take note of the tiff which the October 2010 ENS story reports took place between the Treasurer, Kurt Barnes, and the subcommittee of Finances for Ministry which looked at ECUSA's total debt -- a subcommittee appointed and chaired by Executive Council (and Audit Committee) member Del Glover:

Finances for Ministry initially discussed the borrowing authority during an Oct. 23 session that grew somewhat heated when Barnes objected to Glover having appointed a subcommittee to look into the refinancing possibilities and the borrowing philosophies behind them. Barnes said he was told that the subcommittee was to be a council of advice for him, but said "the council of advice never invited my opinion, so I don't feel it's a council of advice."

He said that the subcommittee's report did not take into account the work that he and Margareth Crosnier de Bellaistre, the church's director of investment management and banking, had been doing for many months to explore refinancing options and solicit proposals from lenders. "It acts as if we've been asleep," Barnes said of the report.

"The way it was approached, my staff and I absolutely felt that our intelligence or ability was always being challenged," Barnes said. "We give 10 hours a day to this church and then we have other people who say, 'but you don't know what you're doing.' That's our problem and if we have misread it, then I am sorry."

Please remember Mr. Barnes's reference to the work that he and investment manager Margareth Crosnier de Bellaistre had done to explore "refinancing options" and to "solicit proposals from lenders." That work was done independently of Dr. Glover's subcommittee. And after hearing Mr. Barnes's complaint, Dr. Glover not only backed off, but was on the receiving end of a reprimand from the Presiding Bishop:

Glover said that the finance office staff had misread the subcommittee's intent. He said the group, made up of former members of the Joint Audit Committee of Executive Council and the Domestic and Foreign Missionary Society and those with expertise in the area, was in fact offering advice and contacts, not implementing policy. He said the need for the subcommittee grew out of the audit committee's concern about the level of debt the church has and about the payment coming due at the end of the year.

Jefferts Schori told the committee during its Oct. 23 session that the appointment of the subcommittee "points to a large issue in our system."

"The job of Executive Council is to set policy, not to implement it and that's where the rub has come," she said.

"It denigrates the staff, that's not helpful," she said of the creation of the subcommittee, adding that "it overreaches the authority of this committee."

"I think people have gotten past the anger and the insult," she told Glover, "but let's not have it happen again."

"It overreaches the authority of this [Executive Council] committee", she said. Really? The Church needs to borrow $60 million and a Committee of its Executive Council cannot inquire into the options without having its hands slapped?

To read between the lines here: the Treasurer of the Church, like all of the staff at 815, works for the Presiding Bishop, not for the Executive Council. When she tells him to "find money for litigation", his job is not to ask "Where?", but rather: "How much do you need?" And in exchange for such due obedience, she protects him from all incursions into his territory by the likes of the Executive Council -- who only imagine that they run the show when General Convention is not in session.

No, this is the Presiding Bishop's show -- lock, stock, and barrel. If the Church needs money to fund her agenda, then it will jolly well have to supply it, without any interference from the Executive Council. The Church is extraordinarily wealthy, with over $140 million in unrestricted securities and investments, the gifts of innumerable donors over the centuries. And in recent years it has not been shy about borrowing against the endowment to provide it with working capital for the Presiding Bishop's ongoing litigation agenda.

Thus it should now come as no surprise to learn that, in a face-off between the Committee's alternatives and those explored by the Treasurer and his investment manager, the latter prevailed. The headquarters building did not have to be mortgaged; the Treasurer simply ponied up more of the endowment as collateral for two new lines of credit. The audited financial statements for 2010 tell the tale (note that I have converted the auditors' numbers in thousands to the real figures in millions):

In early 2011, the Society completed new credit facilities to replace the previous line of credit with the Bank of New York. The new credit facilities are summarized below. At April 30, 2011, $46,340[,000] was outstanding of the $62,000[,000] total facilities available.

In January 11, 2011, the Society obtained a $37 million term loan secured by DFMS’s investment in unrestricted marketable securities, from U. S. Bank, to be used primarily for working capital and other business purposes. The facility is structured as a 5 year loan with a fixed interest rate and annual repayments on a 25-year schedule. Interest is payable monthly; annual principal of $1,480[,000] is payable on each anniversary date through 2016. If not extended or renegotiated, unpaid principal will be due in 2016. At April 30, 2011, $37,000[,000] was outstanding.

The $37 million loan was used to repay the bulk of the amount that had been previously borrowed to renovate the headquarters at 815, and for other working capital. As is typical of such projects, its original cost had been approved and budgeted at just under $30 million. And the then brand-new Treasurer, Kurt Barnes, had a different idea of what the costs would be, and of how the Church would repay the loan. As he was quoted in Episcopal Life on July 1, 2004:

Kurt Barnes, the church’s new treasurer, said the facts had won over the skeptics. “We worked with architects and engineers. We honed down the costs.”

He said “worst case scenarios” were developed, using conservative income estimates and the maximum interest that might be anticipated on the loans for finance the renovation. That amount totaled $29.9 million. “Yes, you could defer the project,” he told the council. “But it will cost more, as much as two to three times more.”

It is proposed to finance the project with 100 percent bank financing amortized over 30 years. The annual cost would be close to $1.9 million per year, offset by expected income from leasing space.

So much for that plan. The 30-year loan never materialized, and the Church took out a three-year loan instead, then refinanced it again in 2007, so that it was due and payable at the end of 2010. The other $10 million of the earlier amounts borrowed, which had been used to acquire property in Austin for the future expansion of the Archives, was repaid in April of this year by obtaining another loan twice that size from a different bank (quoting again from the notes to the 2010 audited statements):

Also on January 11, 2011, the Society obtained a one-year $5 million revolving credit facility from U.S. Bank. The facility, which is unsecured, bears interest based on the Eurodollar rate plus 75 basis points. Interest only is payable monthly. At April 30, 2011, none of the facility had been used.

On April 5, 2011, the Society obtained a $20 million revolving credit facility, secured by DFMS’s investment in unrestricted marketable securities, from Bank of America Merrill Lynch, to be used primarily for working capital and other business purposes. The facility bears interest based on the Eurodollar rate plus 1.0%. Interest is payable monthly. The revolving credit may be drawn and repaid at any time through April 2016. If not extended or renegotiated, unpaid principal will be due in 2016. At April 30, 2011, $9,340[,000] was outstanding.

So we see that, in the end, the Treasurer's negotiations and loan solicitations produced the arrangements which were implemented earlier this year -- without the need of mortgaging the physical headquarters. Note, however, that the terms of the loans arranged do not exactly match the criteria approved by the Executive Council in its Resolution: that "any refinancing agreements include a mandatory repayment schedule for the $37 million at a fixed interest rate." And as the October 2010 Executive Council minutes spell out, the price of that alternative is to tie up at least half of the Church's unrestricted investments (p. 17):

The $60 million requested amount represents 43% of the $140 million in unrestricted endowment assets available to the Society at 9/30/10.

That 43% figure (the result of dividing 60 by 140) is rather misleading. For as disclosed in the financial statements, the loan terms require that 133% of the loan amount be maintained as collateral if it consists of equities (stock) or bonds, and 111% of the loan amount if the collateral is cash or cash equivalents (CD's etc.). And as we also just saw, the Treasurer arranged for $62 million of credit facilities, not just $60 million -- although of that total, $5 million is unsecured. So, if bonds or stocks are the identified collateral for the remaining $57 million, the Church would have to set aside $76 million of its unrestricted endowment as collateral. That represents approximately 54% of the total -- not 43%, as reported to the Council.

One has to question the soundness, as a simple business proposition, of borrowing one's working capital for an enterprise whose budget is shrinking. The Church is a non-profit entity; its "revenues" are mainly donations -- although Government payments to it for running Episcopal Migration Ministries have increased significantly in recent years ($15.8 million in 2010, up from $11.4 million in 2009). Ordinarily, working capital is used to expand production facilities, in order to be able to meet increased demand -- and the idea is that any amounts borrowed will be repaid out of increased revenues from the ability to make and sell more products. No such parameters apply to the Church's case.

Indeed, looked at from the standpoint of voluntary contributions, the Church's revenues are declining as the Average Sunday Attendance and plate and pledge figures decline in tandem. Contributions from Dioceses went from $32 million in 2009 to $27 million in 2010. Moreover, the auditors' description of the credit facilities does not include any suggestion of how the Church intends to repay them. The interim amounts being paid on principal are insignificant until the full amounts fall due in 2016. At that time the loans will once again have to be renegotiated or extended, and the Church's level of borrowing will continue as before.

In short, mortgaging its headquarters will be the least of ECUSA's worries in the short term. But without a determined plan to retire its total debt in the next ten years, ECUSA will either have to sell the building, or else sell off around half of its unrestricted endowment. Borrowing money to finance litigation and other non-church-like ventures, and then asking for voluntary contributions to repay the debt, is not a Christian way to manage a church's affairs.

Think of the Roman papacy in the 16th and 17th centuries. It seems that the more enmeshed ECUSA becomes in secular concerns and their related activities, the less and less remains of a Church of Christ. (For anyone who wants to see the evidence, a close read of the latest minutes from the Executive Council will demonstrate this, as I will discuss in a subsequent post.)

In short: where ECUSA is concerned, the temporal bids to overwhelm the spiritual.

It was held in New Orleans, in the Super Dome. The half time entertainment was Bono and U-2. There must have been 100-thousand people in the stadium, cheering wildly. Bono stepped onto the stage and the lights dimmed and the crowd roared and the band began to play.

If you watch video of that performance, you can hear Bono, over the music and the cheering, speaking into his microphone: “Lord, open my lips that my mouth may sing forth your praise.” The same words spoken at the beginning of the Liturgy of the Hours in the Catholic Church.

And in fact, what followed turned out to be a kind of prayer.

As the song began, and the music swelled, behind the stage a massive banner started to rise, coming up from the floor of the stage, rising toward the ceiling, hundreds of feet above. Around the world, I imagine, millions of viewers were transfixed – stunned and moved what they were witnessing.

On the banner were projected the names of all those who had died on 9/11, less than five months before.

And the music continued, and it went on, Bono and U2 singing about a place “where the streets have no name.” And the banner kept growing, and the list kept getting longer. It seemed like it would never end. Name after name after name, like a visual litany of the lost.

Then the banner reached the roof of the Superdome. And it collapsed, rippling to the floor. For a brief moment, we were back there, and it all was happening again.

To see it so clearly was devastating.

And at the end of the song, with the crowd on its feet, screaming wildly, Bono opened his jacket and there, inside, was sewn an American flag. He stood there in defiance, and in pride, and in solidarity.

There have been so many other tributes and memorials and remembrances since that day – but nothing like that. It was raw, and it was real. An Irishman stood on a stage in New Orleans and paid tribute to a tragedy that struck New York and Pennsylvania and Washington and he said, in effect, I’m with you. Inside, I’m one of you. This is my tribute, my remembrance, my prayer.

What happened after 9/11 — and I think even people on the right know this, whether they admit it or not — was deeply shameful. Te atrocity should have been a unifying event, but instead it became a wedge issue. Fake heroes like Bernie Kerik, Rudy Giuliani, and, yes, George W. Bush raced to cash in on the horror. And then the attack was used to justify an unrelated war the neocons wanted to fight, for all the wrong reasons.

A lot of other people behaved badly. How many of our professional pundits — people who should have understood very well what was happening — took the easy way out, turning a blind eye to the corruption and lending their support to the hijacking of the atrocity?

The memory of 9/11 has been irrevocably poisoned; it has become an occasion for shame. And in its heart, the nation knows it.

I’m not going to allow comments on this post, for obvious reasons.

Have it your way, Mr. Krugman. Let's let Deacon Greg have the last word, shall we?

It is difficult to capture what this anniversary means to us as Americans, as New Yorkers, as Catholic Christians. The things we feel are almost beyond words. We are still, in many ways, groping in the dark, struggling to find a way to deal with what happened, and how much our lives and our world have changed. Yet, this day, as we come before the altar of God with our prayers and petitions, our grief and our anger, we hear these words from the ancient prophet:

“Forgive your neighbor’s injustice; then when you pray, your own sins will be forgiven. Think of the commandments, hate not your neighbor; remember the Most High’s covenant, and overlook faults.”

But how? I wish I knew. I wish there were a mystical way to click on a forgiveness switch in the human heart. I wish I knew how to love all my enemies and pray for all my persecutors and “forgive my neighbor’s injustice” – even this most heinous injustice of all.

I think perhaps that forgiveness – like conversion – is a journey. The human heart isn’t necessarily converted over night. We don’t all have that electrifying moment on the road to Damascus. For many of us, it grows out of what Flannery O’Connor called “a habit of being.” It happens over a lifetime.

Conversion is a daily choice. So, is love.

And so, I believe, is forgiveness.

Like all of the challenges of our faith, it is something we need to pray for – to pray to able to do what we are called to do.

To love our neighbor.

To love our enemies.

To forgive our neighbor’s injustice.

C.S. Lewis put it beautifully. “To be a Christian,” he wrote, “is to forgive the inexcusable, because God has forgiven it in us.”

We forgive you your inexcusable hatred and bile, Mr. Krugman. May God forgive you, as well.

Saturday, September 10, 2011

Reporter Jonathan Wynne-Jones of the London Telegraph has published a story which hints that His Grace, the Lord Archbishop of Canterbury, the Most Rev. Dr. Rowan Williams, "is understood" to have told certain unnamed "friends" that he may be "ready" to resign his post "next year" -- specifically, not before the "Queen's Jubilee in June [2012]."

And just why is this "story" worthy of publication at this particular moment in September of 2011?

Has Dr. Williams tendered his resignation? No.

Has Dr. Williams announced that he will tender his resignation? No.

Has anyone in the Church of England or Her Majesty's Government called for Dr. Williams to resign? Again, no.

Is Mr. Wynne-Jones quoting any source who has actually spoken to Dr. Williams about this subject? Once more -- no.

Why, then, should this story be newsworthy at this time?

An unattributed story -- nay, let us call it what it is: a rumour (to use the official UK spelling) -- to the effect that a high official plans to step down, which is reported in the news media some nine months before the stepping down is allegedly to take place, has one and only one purpose: to undermine the authority of the given official, and to tend to turn him into what Americans know as a "lame duck."

The story -- sorry, rumour -- is the kind that can only gain in credibility to the extent that it is not promptly and vigorously refuted, i.e., denied by the official himself. Which is why such a rumour is floated on a Saturday, just before the Sunday papers come out in the U.K. -- such timing virtually guarantees that there can be no official response for at least 36 to 48 hours, which is plenty of time for the version to get "legs" of its own.

A moment's reflection, however, should suffice to show that the rumour carries within it the seeds of its own disavowal. Let everyone who hears it first ask himself/herself these simple questions:

If the rumour were true, what difference would it make to the Anglican Communion if Dr. Williams were to resign next July, or were to resign right now?

Are there any Primates' Meetings scheduled before next July? No.

Is the Lambeth Conference supposed to convene before next July? Certainly not -- the next Lambeth Conference will not take place for at least seven years.

All right, so we have determined that waiting until July 2012 for the other shoe to drop will make not the slightest of differences to the well-planned-out life of the Anglican Communion. Everything in it will go forward exactly as scheduled, whether we have ++Rowan or --Rowan.

But what about the life of the Church of England?

Ah, now we might be getting somewhere . . . For the story drops this tantalizing clue to its motivation:

Sources close to the archbishop say he will leave after the Queen's Diamond Jubilee next June and having seen the Church finally pass legislation to allow women to become bishops.

At the site of the General Synod of the Church of England, one may read the following about the proposed legislation to allow it to ordain women bishops, which is currently under consideration by the several dioceses:

If a majority of Diocesan Synods approve the draft legislation, it will return to the General Synod (probably in February 2012) for Final Drafting. The Final Approval stage, at which two-thirds majorities are required in each House, could be reached in July 2012. If approved, the legislation would then go to Parliament for consideration by the Ecclesiastical Committee and each House of Parliament.

But such a scenario could be achieved only if, as we say again here in America, "the sun is shining and the birds are all singing in the trees." In September 2011, when this story surfaces, it is certainly probable, but not entirely certain, that a majority of the Church of England's 44 dioceses will approve the proposed legislation by the November 14 deadline. And if they do, the legislation would then return to General Synod for Final Drafting in February 2012, after which (assuming a Final Draft emerges) it could (depending on what passes in February) be put to a vote no earlier than -- July 2012.

In other words, the best-case scenario would come to pass, if it comes to pass, right about when His Grace is supposed to be "announcing" his resignation. Hmm -- in that event, more bothersome questions then surface:

1. If the Archbishop of Canterbury is instrumental in getting a Final Draft to pass Synod next July, why would he resign his post before seeing the legislation through Parliament? After all, by resigning he would be giving up his seat in the House of Lords -- and he would miss out on the opportunity to lead the consecration of the Church of England's first woman bishop. It is hardly the mark of a crusader to exit the scene before Jerusalem is glimpsed.

2. And if Synod does not achieve the two-thirds vote in both Houses to pass the Final Draft in July 2012, wouldn't a resignation immediately afterward appear only as a weak, symbolic protest? ("Symbolic", because the measure could not return to Synod for at least another year. The resignation could not, therefore, cause any sentiments for the legislation's immediate reconsideration.) Dr. Williams does not strike me as being one to engage in weak symbolic protests.

I'm afraid the story as published lacks, shall we say, a certain internal consistency. But that does not mean that one cannot derive a motive for its instigation. One has to ask the question: if the effect of the rumour, particularly if it is not immediately and convincingly denied, is to turn the Archbishop into a lame duck, who would benefit from such a weakening at this particular point in time? Or, to put the question into traditional, concise Latin, cui bono?

Ah, now we are talking. For it would not be the Most Rev. Katharine Jefferts Schori, or her enablers at ECUSA and in the Communion as a whole, who would specifically benefit: they have already seen to the irreparable loss of Dr. Williams' authority overseas and in the Instruments of Communion, by simply defying his every request up till now for restraint. Once again, therefore, by the process of elimination, it must be in the interests of a certain group within the Church of England itself to plant such a story at this time.

And who would be more motivated to do so than the group pushing the legislation which is to come before Synod next February? For let's face it: for the purposes of that group, ++Rowan is now simply in the way. Regarded as having made commitments to the Anglo-Catholics to ensure that they will not abandoned to the vicissitudes of a mere code of practice, which could be disregarded with impunity, the Archbishop has made his role in the passage of the eventual legislation rather awkward, since he has to be seen (at least publicly) to be dragging his feet while he is (supposedly) strongly for it. What better way, therefore, to minimize any potential slowdown from his dragging his feet than by making him lame between now and next July?

This may be only speculation on my part, but it is as good as anyone else's at this point, given that all anyone has to go on is an unattributed rumour at third hand. Some bloggers, with more of an agenda to advance, will undoubtedly take the occasion to say more -- but no more than what an obituary could say on this date, were that the news with which we were dealing. For this Anglican Curmudgeon, it is far too soon to dismiss what remains of the influence that could yet be wielded by a willing Archbishop of Canterbury -- especially (and if only) he determined to put to rest such a pernicious rumour. Until there is more to deal with than just vapor and guesses, therefore, I will say only: "that's my take, and I'm sticking with it."

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